Harassment By Resident

Employers will be held liable if they do not protect employees from sexual harassment by a resident.

January 2013

Ted Boehm

Page Content

​A recent lawsuit filed by the United States Equal Employment Opportunity Commission (EEOC) against a private health care facility in Virginia serves as a reminder to nursing homes and other long term care providers of the potential liability they face when they have a resident who displays harassing conduct toward others.

On Sept. 6, 2012, EEOC filed suit against the Virginia facility under Title VII of the Civil Rights Act, alleging that the employer failed to protect a female receptionist from sexual harassment by a resident, which created a “sexually hostile work environment” for her.

As with most harassment lawsuits, the employee alleged that she made numerous complaints to her supervisor about the harassment, yet the employer failed to take proper corrective action.

Harassment Problems Specific To Residents

Sexual harassment is a difficult issue in any employment setting, but perhaps nowhere is it more problematic than in the resident care arena. Nursing home employees, including nurses and therapists, are in regular, physical contact with non-employees—primarily the residents for whom they care (and the family members of those residents).

Under Title VII, nursing home employees are protected from harassment by residents just as they are from co-workers and supervisors. Hospitals, nursing homes, assisted living facilities, and other patient-care entities are responsible for providing a workplace free of sexual harassment, regardless of whether the harassment is perpetrated by a co-worker or by a paying resident.

Most nursing home employers have experienced episodes in which a resident acts out in an inappropriate manner. Often, the inappropriate behavior is due to the resident having a deteriorated mental condition such as dementia or Alzheimer’s disease. As a result of this condition, residents may not understand that their actions are inappropriate.

However, this mental condition does not act to shield nursing home employers from liability.

Employers Must Act

Where sexual harassment has been alleged in a nursing home, a court will likely first look to whether the employer knew or should have known about the harassment and whether the employer did anything to correct the offending conduct. Of course, a nursing home is somewhat constrained in how it can respond to complaints of sexual harassment by residents.

For example, a nursing home cannot transfer a resident unless the transfer complies with the Bill of Rights for Residents of Long Term Care Facilities. However, this constraint does not entitle an employer to sit back and do nothing.

A case from Massachusetts in the late 1990s illustrates this point. A respiratory therapist sued her employer and alleged that the employer failed to remediate repeated sexual harassment against her by an elderly resident in her care.

The employee also alleged that her employer retaliated against her after she complained. In that case, the employer had advance knowledge that the patient had been accused of making inappropriate sexual comments to female staff members at the hospital during his hospitalization.

Upon his arrival to the employer’s facility, the employer developed a care plan designed to address his “misbehavior.” Despite these measures, the employee claimed that the patient harassed her and that her complaints went unanswered.

The employer essentially argued that it was limited by the federal regulations governing long term care facilities from taking any action and that those regulations shielded it from liability. The court rejected that argument, finding that the employer could not disclaim all responsibility toward its employees in the name of patient care.

A similar argument has been rejected more recently by courts in other jurisdictions.

For example, a federal court in Illinois in 2008 rejected an argument from a defendant nursing home that it could not be held liable for the harassing conduct by a nursing home resident because it did not employ the resident.

In that case, a dietary aide sued her employer after a resident in her care repeatedly harassed her. The court held that it did not matter whether the harasser was a co-worker or a resident; the employer could be held liable if it knew or should have known about the harassment and failed to prevent it.

Steps A Nursing Home Should Take

These cases demonstrate that an employer will not be let off the hook simply because the harassing individual was not an employee. While it may not be possible to completely prevent harassment in the nursing home context due to the mental conditions of residents, employers can take steps to address and minimize the risk.

First, the employer should maintain a policy and procedure that addresses sexual harassment by residents or other third parties. The policy should specifically address how employees can report the harassment when it occurs.

Maintaining a “reporting” policy is critical for another reason: It provides the employer with important legal defenses in situations involving alleged harassment by a supervisor.

Second, the employer should regularly train its employees on how to react when they are harassed by a resident.

Because the duties of a nursing home employee often require him or her to work in close, physical contact with residents, there is an increased potential for misunderstandings or unwelcome incidents.

If employees are trained to react properly and promptly, the unwelcome conduct may be stopped before it becomes “severe or pervasive”—the standard used by courts in analyzing sexual harassment claims.

Third, the employer must investigate and respond to complaints appropriately. While the response will depend on the circumstances of the complaint, there are several “best practices” that an employer should consider. For example, the employer could assign the resident to another employee’s care or discuss with the employee whether he or she wants to transfer to another part of the facility.

Other options include making staffing adjustments such that the employee never cares for the resident by himself or herself. The employer should also consider involving the resident’s family in an effort to stop the inappropriate behavior.

Ted Boehm is a labor and employment attorney with Fisher & Phillips in Atlanta. For questions about this or other labor and employment issues, please contact him at tboehm@laborlawyers.com or (404) 231-1400.

I was just fired from a facility that didn't help me with a woman who would not stop touching me. I was told by my boss "she has dementia, she won't hurt you. Just be nice to her." I was never not nice to her, but ended up getting written up for taking a step back from her. I worked in Medical Records. So my take on this is they don't care just as long as you don't mess with there bread & butter. Be it private nursing home or corporation, they need to stick up for there employees, so that bread & butter will keep coming in.

Mary Pakusch

11:56 AM

November 05, 2016

I am aware of a situation at the nursing home my quadriplegic boyfriend lives at. A male resident made a sexual comment to another resident. This was a one time occurrence, and it was reported by the female resident. The male resident is being punished by not being allowed to be in the designated smoking area for 3 months. That means he has to go off of the nursing home property to smoke. To me this seems like an extreme response to a one time incident, and I've also heard it may not be a legal response. Does anyone know if it is legal or not?

Jeanne

11:35 PM

October 14, 2016

I went through this back in February a resident grabbed me and tried to force himself on me.I told resident no he got upset because I refused to let him do anything to me said he thought I'd like it I said I'm married I have a husband I told on him the person who ran the building blew up said he didn't care this residents room was to be cleaned no matter what they knew he did this to other employees and residents

JG

10:30 AM

October 13, 2016

I'm a CNA in a nursing facility, being verbally and physically abused by a resident who has been out of control. The supervise has talked to resident but no change. Any recourse for CNA?

ruth hutchinson

6:08 PM

September 19, 2016

the facility I work at has two residents [long term] that are in electric wheel chairs . they are constantly trying to run us [the nursing staff] over two weeks ago one of the did run me over in front of two nurses today the other one pinned a can up against the wall. these two residents are verbally abusive also . there is not a day that goes by that we are called names sworn at hit charged at from them in their chairs. we have documented it enough to write a book I fear for my residents safety as well as the ppl I work with the two women have not been diagnosed with dementia and yes the have been tested. please tell me what if any rights do we the employees have

albert

1:51 PM

July 19, 2016

It is worse if your male because we have to tolerate inappropriate conduct from the older females.
In my case I work in an Dementia Unit and I pass meds. There is one resident who started by making comments like come here I'm going to spank you then it move on to her coming behind me rubbing my back. I would tell "Thank you but I don't need my back rubbed" I dread anytime she comes my way because it's the same mess and because she has dementia I try to understand but I don't like it.
Before you tell me to find another job, I will say I love working there and but I don't know what to do. I have complained to the Charge Nurse ad she has told me that they are going to write it up as a behavior, a lot that's going to do!

chante magruder

10:44 PM

June 28, 2016

Good post - I was fascinated by the insight - Does someone know where I would be able to find a template CA CH-100 version to fill in ?

Peggy Haynesworth

11:20 PM

May 30, 2016

Employees feel safe at work when the know they have rights when it comes to resident on employee harassment.

Carla

2:09 PM

May 29, 2016

All harassment should taken seriously and not tolerated.

Christine

10:52 PM

May 26, 2016

If you see something you should say something. Any type of harassment should be taken seriously.

april humphrey

5:55 PM

May 17, 2016

harassment is not tolerated, being to felt uncomfortable at work is not option

april humphrey

5:54 PM

May 17, 2016

Being uncomfortable at work is not an option, harassment is not tolerated.

Shequela

5:22 PM

May 07, 2016

I was anaware of being able to fie against my employeer. I have had my butt grabed breast touch and Im not a new facility and the old man teir walk around aday asking are you mmy baby, then he may go on to say thinhgs like I cant wait to put this big thing on your mouth

Gayle Hughes

9:48 AM

May 07, 2016

harassment is a serious situation that needs to be address as soon as it happens

Gina porter

8:18 AM

April 24, 2016

Policy should be in place and follow when harassment is reported. All harassment should be taken seriously.

Doris Jones

4:37 AM

March 01, 2016

What about physical assault? I am female and since I have worked here, I have had 2 female residents literally place their hand around my throat to choke me. In one of these instances, the resident also came into the kitchen and started to go through the drawers looking for a knife to stab me. Both instances were written up and reported to the supervisor but NOTHING was done. I am now looking for another job in another field completely. In both cases the residents are diagnosed with mental problems and dementia but I feel that the workers should be protected by the facility. Am I incorrect in this thinking?

Susan Gail Ratty

4:00 PM

August 11, 2015

Harassment by either party must be addressed immediately to prevent further harassment or law suit employers must educate all staff on sexual harassment upon being hired this will prevent most instances of harassment.

Andrea

9:26 AM

July 13, 2015

This is an especially hard to deal with issue in residents with Alzheimer's or demntia. I have never reported or taken anything too seriously because all the times I've been groped or spoken to in a sexually suggestive way, the resident was really just confused and needed redirecting.

Connie Grajczyk

7:05 AM

May 27, 2015

All harassment allegations should be taken seriously and investigated.

Renee K

1:05 PM

May 25, 2015

All harassment allegations need to be taken seriously and investigated.

Lori Craig

10:34 AM

May 25, 2015

Employers need to have a policy in place for employees and educate and in service them more often

Lori Craig

10:31 AM

May 25, 2015

Harassment is unacceptable in nursing homes and hospitals lawsuits have been filed in Nursing homes

Bonnie Ferrebee

9:34 PM

May 24, 2015

Employers must maintain a policy and procedure that addresses sexual harassment. Employers should regularly train its employees on how to react. The employer must investigate and respond to complaints appropriately.

susan abbott

4:03 PM

May 18, 2015

all harassment should be taken seriously

Kristin

4:58 PM

April 16, 2015

All harassment should be taken seriously. No one should turn a blind eye

Emelina Sicat

1:01 AM

March 19, 2015

The facility has the legal responsibility to address and prevent sexual harassment in the workplace. Otherwise there will low employee morale, low productivity and lawsuits

Emelina Sicat

12:55 AM

March 19, 2015

The employer or facility has the legal responsibility to maintain a workplace that is free from sexual harassment, otherwise there will be a low employee morale, low productivity and law suits

April

12:00 PM

April 18, 2014

Tell someone staying queit is a part of the problem !!!!!

ellen carville

8:17 AM

April 01, 2014

All harassment complaints should be taken seriously and handled with right away.

anonymous cna

11:48 AM

January 21, 2014

We have been sexually assaulted and physically assaulted by one resident repeatedly I have reported it verbally and writen many times.my employer only laughs and makes excuses for this man.he was kicked out of our facility prior to his coming back for physical and sexual assault also.so my employer knowingly put female staff in harms way by allowing him to return only to keep assaulting us with no reproductions.they have kept assigning females to his room.I'm tired of their b.s and now know I can take legal action on my employer for failure to protect me and others.thank you for this informative page.

sara edwards

12:07 PM

January 10, 2014

Harassment weather it is sexual Harassment in the work place should be handled i a more timely manner by the management staff, it should never have to get to the point where there is a lawsuit. And I for one am glad that residents in their right minds are held accountable for the harassment. I have seen far to many of them think they can get away with everything just because they are in a nursing home

8:59 PM

January 03, 2014

Harrassment is a serious issue in healthcare facilities and must be addressed immediately.

Deborah Callaway

8:57 PM

January 03, 2014

Harrassment and luid comments must be addressed immediately and brought to the attention of the Administrator to prevent further involvement and put a stop to the verbal and physical assault

Susan Simpson

3:26 PM

September 26, 2013

The handling of reports of harassment is very important, documentation, and training also improtant.

tonya keyes

3:02 PM

September 24, 2013

Harrassment is a serious matter and should be reviewed at the time of hire and also every year after hire.

Giovanni Laurel

8:38 PM

August 13, 2013

At times harassment is mentioned at a uncontrollable stage. When it should be dealt with at the infancy stage and follow up on the behavioral issue to redirect or switch the care giver. in any case it has to be dealt with at the time of occurance to help prevent it.

Laura miller

4:59 PM

July 11, 2013

Please know what harassment is and report it.

Sue Zins

6:33 PM

June 11, 2013

What happened to the golden rule "Do onto others as you would want done to you" Having respect and dignity for other people is so vital and we all took that seriously, then we would not have this harrassment issue.

Sandra Barker

6:01 PM

June 07, 2013

Employer's must take steps to educate staff on what harassment is and how to report harassment. Written policies should be developed to ensure all steps are taken to resolve harassment claims without retaliation to the employee. Immediate steps should be taken to remove the employee from the situation. This can include reassigning the employee to another patient. Employeers can be held legally responsible if they choose to ignore the complaint.

Mary Davis

8:22 AM

May 31, 2013

Harassment needs to be taken seriously. When management turns a blind eye the employees know they do not have support. The result it ongoing harassment and no one will take action. Management must show employees action will be taken according to written policy. That is the only way harassment will be stopped.

pamela bartolomei

10:57 PM

May 29, 2013

Unwelcome comments and touching by residents toward employees has resulted in lawsuits against the facilities. Complaints about any hostile environment must be acted upon, even if the resident involved is mentally deficient. Records of the incidents, and action taken toward prevention or escalation of the behavior is important for legal defense. Options for the victim must be made to prevent further incidents.

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